Labor & Employment Law

Employees May Be Personally Liable For Employment Discrimination Under New York Law

Employees May Be Personally Liable For Employment Discrimination Under New York Law
Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

I just became aware of George v. NYC Transit Authority, 496 F. Supp. 2d 231 (E.D.N.Y. 2007) which demonstrates the importance of state law in employment discrimination cases. The court held that an individual employee could be liable for hostile environment discrimination under NYS law notwithstanding the fact that he could not be held so liable under federal law. As the court reasoned:

Plaintiff also brings state law claims against the NYCTA and Bartelli personally. Because retaliation and hostile work environment claims brought under the NYSHRL are governed by the same standards as Title VII claims, plaintiff's state law retaliation claims fail for the above reasons. See Schiano, 445 F.3d at 609 "Hostile work environment and retaliation claims under the NYSHRL are generally governed by the same standards as federal claims under Title VII."). Plaintiff may, however, proceed on his state law hostile work environment claim against the NYCTA. Regarding plaintiff's state law hostile work environment claim against Bartelli, the Second Circuit has held that a co-worker who "'actually participates in the conduct giving rise to a discrimination claim' [may] be held liable under the NYSHRL even though that co-worker lacked the authority to either hire or fire the plaintiff." Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995)). Here plaintiff has presented sufficient evidence to create a triable issue of fact that Bartelli routinely referred to plaintiff with ethnic slurs and, in so doing, "actually participate[d]" in plaintiff's discriminatory treatment. Plaintiff may thus proceed against Bartelli.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on June 15, 2008 (boomark / email).